No.

14-2526


IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT


VIRGINIA WOLF, et al.,

Plaintiffs-Appellees,

v.

SCOTT WALKER, et al.,

Defendants-Appellants.


MOTION FOR STAY OF MANDATE PENDING FINAL DISPOSITION
OF PETITION FOR WRIT OF CERTIORARI


Anticipating that the Supreme Court will review the constitutionality of
same-sex marriage in the coming October term, either in this or other cases,
Wisconsin State Defendants
1
request, pursuant to Federal Rule of Appellate
Procedure 41(d), that the Court stay its mandate in this case and maintain
the district courts stay of its declaratory and injunctive relief pending final
disposition of Wisconsin State Defendants fully submitted petition for writ of
certiorari by the Supreme Court.


1
Defendants Scott Walker, J.B. Van Hollen, and Oskar Anderson are collectively
referred to as Wisconsin State Defendants.
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INTRODUCTION
On June 13, 2014, the district court granted Wisconsin State Defendants
motion to stay (Dist. Ct. Dkt. 114), ordering that [t]he injunction and the
declaration shall take effect after the conclusion of any appeals or after the
expiration of the deadline for filing an appeal, whichever is later. (Dist. Ct.
Dkt. 134:13-14). Appeals are pending (see Petition for Writ of Certiorari,
Walker v. Wolf, No. 14-278 (U.S. filed Sept. 9, 2014)) and the district courts
stay remains in effect.
Some uncertainty nonetheless exists regarding the stay. For
example, plaintiffs counsel was quoted as stating that the Courts ruling
will go in effect 21 days after its decision and suggesting same-sex
marriages will therefore resume in Wisconsin at that time. See, e.g.,
Jason Stein and Patrick Marley, Court rules against Wisconsins,
Indianas gay marriage bans, Milwaukee Journal Sentinel, Sept. 4, 2014
(available at http://www.jsonline.com/news/statepolitics/court-throws-out-
wisconsins-and-indianas-gay-marriage-bans-b99344862z1-273993541.html,
last checked Sept. 15, 2014); see also Michael Tarm, Appeals court
says gay marriage ban unconstitutional; State to appeal to
Supreme Court, Associated Press, Sept. 4, 2014 (available at
http://www.wbay.com/story/26450705/2014/09/04/appeals-court-says-
wisconsin-gay-marriage-ban-unconstitutional, last checked Sept. 15, 2014)
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(The ACLU says the 7th Circuit Court of Appeals mandate will take effect
in 21 days unless a motion to stay that decision is filed.).
Additionally, defendant McDonell, the Dane County Clerk, stated, If I
think I can issue a marriage license I will. See Judy Davidoff,
Appeals court strikes down Wisconsin ban on same-sex marriage,
but marriages still on hold, Isthmus, Sept. 4, 2014, available at
http://www.isthmus.com/daily/article.php?article=43529.
Wisconsin State Defendants disagree with the comments of plaintiffs
counsel and McDonell. However, given the history of confusion in Wisconsin
regarding the authority of county clerks to issue marriage licenses to
same-sex couples (over 500 licenses issued after the district courts
preliminary ruling before injunctive relief was entered), a stay by this Court
is appropriate. Therefore, out of an abundance of caution, and to provide
clarity and certainty for the parties, the public, and all 72 Wisconsin county
clerks, the Wisconsin State Defendants request the Court stay its mandate
and maintain the district courts stay pending final disposition by the
Supreme Court.
This Court entered judgment against Wisconsin State Defendants on
September 4, 2014 (Case No. 14-2386, ECF 213). On September 9, 2014,
Wisconsin State Defendants filed a Petition for Writ of Certiorari with the
Supreme Court presenting the following question: whether the Fourteenth
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Amendment prohibits a state from defining and recognizing marriage as only
the legal union between one man and one woman. The Supreme Court
immediately docketed that Petition as No. 14-278. Walker v. Wolf, No. 14-278
(U.S. filed Sept. 9, 2014). The same day, plaintiffs-appellees filed their
response supporting certiorari and Wisconsin State Defendants waived
reply.
2
This case is fully submitted to the Supreme Court and the Petition
has been distributed to the Court for consideration on September 29, 2014,
the first conference of this coming term. Id.
In two other cases, the Supreme Court has held that lower court orders
invalidating states traditional marriage laws should not disrupt the status
quo until it first resolves the issue. See McQuigg v. Bostic, No. 14A196,
2014 WL 4096232 (U.S. Aug. 20, 2014); Herbert v. Kitchen, 134 S. Ct. 893
(2014). The Court further stayed an injunction that would have required
Utah to recognize same-sex marriages occurring during the period the
original district court injunction was in effect. Herbert v. Evans, No. 14A65,
2014 WL 3557112 (U.S. July 18, 2014).
This Court has stayed relief in Baskin v. Bogan, No. 14-2386, granting
Indiana State Defendants motion for stay of mandate pending final
disposition of their petition for writ of certiorari (Case No. 14-2386, ECF 217).


2
The three county clerk defendants, Milwaukee County Clerk Jospeh Czarnezki,
Racine County Clerk Wendy Christensen, and Dane County Clerk Scott McDonell,
each expressly waived response.
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Staying the mandate here pending resolution of Wisconsin State Defendants
petition for certiorari would appropriately preserve the status quo consistent
with the Supreme Courts orders in McQuigg and the two Herbert cases, and
this Courts order in Baskin.
STANDARD FOR GRANTING A STAY OF MANDATE
A motion for stay of mandate must show that the certiorari petition
would present a substantial question and that there is good cause for a stay.
Fed. R. App. P. 41(d)(2)(A). [T]he party seeking the stay must demonstrate
both a reasonable probability of succeeding on the merits and irreparable
injury absent a stay. Senne v. Vill. of Palatine, 695 F.3d 617, 619
(7th Cir. 2012) (citation and internal quotation marks omitted). [I]n order to
demonstrate a reasonable probability of succeeding on the merits of the
proposed certiorari petition, a party must demonstrate a reasonable
probability that four Justices will vote to grant certiorari and that five
Justices will vote to reverse the judgment of this court. Id.
ISSUE RAISED IN THE PETITION FOR WRIT OF CERTIORARI
The issue raised in Wisconsin State Defendants Petition for Writ
Certiorari is whether the Fourteenth Amendment prohibits a state from
defining and recognizing marriage as only the legal union between one man
and one woman (see Petition for Writ of Certiorari, Walker v. Wolf, No. 14-278
(U.S. filed Sept. 9, 2014)).
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ARGUMENT
I. THE SUPREME COURT IS LIKELY TO GRANT CERTIORARI
AND THERE IS A REASONABLE PROBABILITY THAT THE
COURT WILL REVERSE THE JUDGMENT OF THIS COURT.
1. In addition to Wisconsin State Defendants and Indiana State
Defendants petitions, five other petitions for certiorari arising out of
same-sex marriage cases have been distributed to the Supreme Court for
consideration at its September 29, 2014, conference (see Petition for Writ of
Certiorari, Bogan v. Baskin, No. 14-277 (U.S. filed Sept. 4, 2014); Petition for
Writ of Certiorari, Herbert v. Kitchen, No. 14-124 (U.S. filed Aug. 5, 2014);
Petition for Writ of Certiorari, Smith v. Bishop, No. 14-136 (U.S. filed Aug. 6,
2014); Petition for Writ of Certiorari, McQuigg v. Bostic, No. 14-251
(U.S. filed Aug. 29, 2014); Petition for Writ of Certiorari, Schaefer v. Bostic,
No. 14-225 (U.S. filed Aug. 22, 2014); and Petition for Writ of Certiorari,
Rainey v. Bostic, No. 14-153 (U.S. filed Aug. 8, 2014)).
The present case is the ideal vehicle to resolve all same-sex marriage
constitutional issues: the plaintiffs seek both marriage licensing and
recognition of out-of-state licenses; Wisconsin has a state constitutional
amendment, a statutory scheme that recognizes only opposite sex marriage,
and domestic partnership laws; the state defendants are actively defending
the laws; and there are no standing problems for plaintiffs (see Petition for
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Writ of Certiorari, Walker v. Wolf, No. 14-278 (U.S. filed Sept. 9, 2014), at 6,
9-12).
It is likely that at least four Justices will vote to grant certiorari in this
case or one of the other six same-sex marriage cases that are ripe for
consideration. Moreover, a broad nationwide consensus agrees that Supreme
Court review of the constitutionality of same-sex marriage is necessary; at
least 31 states and dozens of other amici have filed briefs supporting
Herberts petition for a writ of certiorari (see, e.g., Brief of Colorado, et al., as
Amici Curiae Supporting Petitioners, Herbert, No. 14-124 (U.S. filed Sept. 4,
2014); Brief of Massachusetts, et al., as Amici Curiae in Support of Petition
for Writ of Certiorari, Herbert, No. 14-124 (U.S. filed Sept. 4, 2014)). Even if
the Supreme Court does not select the present case for review, it is likely to
hold the case while considering the same-sex marriage issues in other states
cases. This Court should preserve the status quo pending the Supreme
Courts likely resolution of the constitutionality of same-sex marriage this
Term.
2. On the merits, there is a reasonable probability that the Supreme
Court will reject the argument that the Fourteenth Amendment requires all
states to issue licenses to same-sex couples and recognize foreign same-sex
marriages.
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First, while this Court appears to have applied some form of heightened
scrutiny, the Supreme Court is likely to conclude that rational basis review is
appropriate. Among other things, despite several opportunities, the Supreme
Court has never treated homosexuals as a protected class. See, e.g., United
States v. Windsor, 133 S. Ct. 2675, 2696 (2013); Lawrence v. Texas,
539 U.S. 558, 578-79 (2003); Romer v. Evans, 517 U.S. 620, 632, 634-35
(1996). Under rational basis, Wisconsins marriage laws must be accorded a
strong presumption of validity. Heller v. Doe, 509 U.S. 312, 319 (1993).
Accordingly, the Supreme Court is likely to apply only rational basis review
and is reasonably likely to conclude that Wisconsin State Defendants
proffered bases (e.g., tradition, proceeding cautiously, protecting the
democratic process, responsible procreation) are sufficient to uphold
Wisconsins traditional marriage laws.
Second, this Court improperly framed the issue in exclusionary terms and
presumed that Wisconsins traditional marriage laws were discriminatory.
The proper constitutional question is not whether sufficient justifications
exist for excluding persons from marriage and its benefits, but instead,
whether an opposite-sex definition of marriage furthers legitimate interests
that would not be furthered, or furthered to the same degree, by allowing
same-sex couples to marry. Jackson v. Abercrombie, 884 F. Supp. 2d 1065,
1107 (D. Haw. 2012).
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Third, Windsor makes no holding that states traditional marriage laws
are unconstitutional. Windsor does not address state rationales for marriage
and its holding was expressly confined to [New Yorks] lawful marriages.
133 S. Ct. at 2696. The holding in Windsor was limited to Section 3 of
DOMA, a statute that was found unconstitutional because it was an unusual
deviation from the tradition of recognizing and accepting state definitions of
marriage. Id. at 2693 (emphasis added). No similarly unusual deviations
from tradition exist here.
To the contrary, Windsor acknowledged that [t]he limitation of lawful
marriage to heterosexual couples[ ] has for centuries . . . been deemed both
necessary and fundamental. Id. at 2689 (emphasis added). It does not
support argument that the fundamental right to marriage includes a
fundamental right to marry a person of the same sex. Id. at 2715 (Alito, J.,
dissenting) (It is beyond dispute that the right to same-sex marriage is not
deeply rooted in this Nations history and tradition.).
Accordingly, there is a reasonable probability that the Supreme Court will
reverse the judgment of this Court.

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II. Wisconsin Will Suffer Irreparable Harm If A Stay Is Not
Granted.
1. Wisconsin State Defendants seek to preserve the status quo that was
set in place by the district court on June 13, 2014. Even if they ultimately
prevail, plaintiffs-appellees will not be irreparably harmed by a slightly
longer delay until a final resolution. This is particularly so where, as here,
any delay would be of limited duration because the Supreme Court will most
likely review the constitutionality of same-sex marriage in its next term.
2. A lack of a stay will, in stark contrast, result in chaos, confusion, and
uncertainty. This was borne out in the week between the district courts
June 6, 2014, decision and order entering declaratory relief (Dist. Ct.
Dkt. 118) and its June 13, 2014, decision and order staying the proceedings
(Dist. Ct. Dkt. 134), where some but not all Wisconsin county clerks issued
marriage licenses to same-sex couples and more than 500 same-sex
couples applied for and received marriage licenses. See, e.g., Jason Stein,
Patrick Marley, Dana Ferguson, Federal judge overturns
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Wisconsins gay marriage ban, Milwaukee Journal Sentinel, June 7, 2014
(available at http://www.jsonline.com/news/statepolitics/federal-judge-
overturns-wisconsins-gay-marriage-ban-b99286138z1-262161851.html, last
checked September 15, 2014).
3. The State of Wisconsin and its citizens would be irreparably harmed
absent a stay. [A]ny time a State is enjoined by a court from effectuating
statutes enacted by representatives of its people, it suffers a form of
irreparable injury. Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J.,
in chambers) (quoting New Motor Vehicle Bd. v. Orrin W. Fox Co.,
434 U.S. 1345, 1351 (1977) (Rehnquist, C.J., in chambers)).
Wisconsin State Defendants therefore request this Court allow final
Supreme Court resolution before entering its mandate.

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CONCLUSION
For the foregoing reasons, Wisconsin State Defendants respectfully
request this Court stay the issuance of its mandate pending final disposition
of Wisconsin State Defendants fully submitted petition for writ of certiorari
by the Supreme Court.
Dated this 16th day of September, 2014.
Respectfully submitted,
J.B. VAN HOLLEN
Attorney General


s/Timothy C. Samuelson
TIMOTHY C. SAMUELSON
Assistant Attorney General
State Bar #1089968

THOMAS C. BELLAVIA
Assistant Attorney General
State Bar #1030182

CLAYTON P. KAWSKI
Assistant Attorney General
State Bar #1066228
Attorneys for Defendants,
Scott Walker, J.B. Van Hollen,
and Oskar Anderson
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-3542 (Samuelson)
(608) 266-7477 (Kawski)
(608) 266-8690 (Bellavia)
(608) 267-2223 (fax)
[email protected]
[email protected]
[email protected]
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FEDERAL RULE OF APPELLATE PROCEDURE 41(d)(2)(A)
CERTIFICATION

The undersigned hereby certifies that a Petition for Writ of Certiorari to
the Supreme Court has been filed in this matter on September 9, 2014. This
Motion for Stay of Mandate Pending Petition for Writ of Certiorari is not
being filed merely for delay. The Motion includes a statement of the specific
issues raised in the petition for certiorari and shows that the petition for
certiorari raises important questions meriting review by the Supreme Court.


s/Timothy C. Samuelson
TIMOTHY C. SAMUELSON
Assistant Attorney General
State Bar #1089968

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CERTIFICATE OF SERVICE

I hereby certify that on September 16, 2014, I electronically filed the Motion
for Stay of Mandate Pending Petition for Writ of Certiorari with the Clerk of
the Court for the United States Court of Appeals for the Seventh Circuit by
using the CM/ECF system.
All parties are registered CM/ECF users and are being served by the
CM/ECF system.

s/Timothy C. Samuelson
TIMOTHY C. SAMUELSON
Assistant Attorney General
State Bar #1089968
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